DAN ABRAMS, HOST: Coming up, police search for a Missouri couple they say beat, raped, and murdered a woman, and then buried her in a shallow grave. And they captured it all on a video.

The program about justice starts now.

Hi everyone. We‘ll get to that story later, but first up on the docket, Los Angeles police have arrested two women, 75-year-old Helen Golay and 73-year-old Olga Rutterschmidt and charged them with eight counts of federal mail fraud, but that‘s just the beginning. Authorities suspect the two women may have murdered men to cash in on life insurance policies they suckered the men in to buying.

Two homeless men, Paul Vados and Kenneth McDavid were found dead after hit-and-run accidents. Police now believe Golay and Rutterschmidt may have befriended the men, set them up with apartments, and life insurance policies, named the women as beneficiaries and then later run the men over with cars to collect. Police arrested them on the mail fraud charges out of fear for the safety of other men who could be targeted.

Joining me now, Los Angeles Police Department spokesperson Lieutenant Paul Vernon and Herb Brown, assistant special agent in charge for the FBI in Los Angeles. Gentlemen, thanks very much for coming on the program. Appreciate it.

All right, Lieutenant Vernon, how were you able to link these two cases together, because from what I understand, they were more than five years apart that these two men were hit and then someone ran away.

LT. PAUL VERNON, LOS ANGELES POLICE DEPT.: Yes. They were actually six years apart, and what had occurred was we had a hit-and-run last year, about mid year, 2005, and the detective was talking about his case in the squad room one day and brought up some of the circumstances involving these women being involved in the man‘s death, and wanting to collect the body and some paperwork about the man‘s death and it seemed out of the ordinary and another detective recognized what he described. He said you know, I had a case about five or six years ago like that.

ABRAMS: Wow.

VERNON: They searched through the record file, and sure enough, not only were the circumstances similar and both homeless men both found dead by a hit-and-run in an alley, but in this case, both women had associations with both these men.

ABRAMS: And do you have evidence that they had actually taken out life insurance policies on other men, because my understanding is you wanted to make sure you got them off the streets.

VERNON: Right now, that is part of our investigation. With the California Department of Insurance and the FBI is looking into the other parts of the insurance scam aspect, and to give Herb Brown credit and the FBI credit, it was actually their arrests on the federal charges that is keeping these women in jail right now, pending an indictment next week.

ABRAMS: And Agent Brown, I‘ll get to that in a minute, but let me ask you this. Is it true that one of the women called in to the authorities or called for a tow truck or something with regard to the death of one of the men before the body was even discovered?

VERNON: I‘m not sure about all of the details, looking at that. We are following a number of leads, including some leads now since the publicity of these arrests have come in, where we‘ve had other people contact us. We are trying to link the women to the murders themselves, to the men‘s deaths themselves. Initially we thought perhaps there may have been an indirect connection to their deaths, but now the detectives are actually leaning closer toward the belief that the women were more directly involved...

ABRAMS: When you say more directly, you mean sitting behind the car and literally ramming it at this guy and killing him?

VERNON: Well, that‘s definitely a possibility, and we‘re looking into that to see if there‘s enough evidence that we can prove that and then bring state charges against them for murder, if that‘s the case.

ABRAMS: Wow. All right, Agent Brown, the federal charge is mail fraud, what does that mean in this context?

HERB BROWN, FBI ASST. SPECIAL AGENT IN CHARGE: Well, Dan, as we‘ve seen in many of our internal investigations, and definitely in our fraud investigations, that we have used the mail fraud statute for a number of years. I think what was most important what you just said earlier, our first and foremost concern was getting these ladies off the street and what we did working in the task force environment with LAPD, the postal service, as well as Department of Insurance in California, is that we‘re able to identity that they were fraudulently applying these applications and using the United States mail and that was the easiest way for us to one, identify the violations but more importantly to make sure that we had violations that were secure and could get them off the street.

ABRAMS: Did they even know these guys as far as you know or would they basically just walk the streets looking for homeless people and say hey, by the way come here, I‘ll put you up in an apartment, sign up for a life insurance policy?

BROWN: I think what they did, Dan, primarily is they fed on the insecurities of what we have seen are the most helpless people in society and that is the homeless. Listen, if you are trying to get off the street, if you want shelter, if you want room and board, they were approaching them and it was a pretty good deal. You sign this piece of paper, we‘ll give you room and shelter, we‘ll give you food, and so it was a way, a vehicle, if you may, to get them off the streets, so they did approach various people and our ultimate concern was were there other victims out there that could also potentially be murdered.

ABRAMS: And let‘s be clear, the eight counts of mail fraud that they are being held for, does that just relate to insurance policies on the two men who have been identified and who are dead or is that—does that relate to other men as well?

BROWN: No, the mail fraud charges that we have in place now are just for the two defendants that are in custody. Again, the challenge for us and LAPD is to identify potentially other victims that may be out there.

ABRAMS: And finally, Lieutenant, what makes you think you can link them? Can you tell us anything about what makes you think you can link them to actually killing these guys?

VERNON: Well, certainly the motive for gain here on these women was life insurance policies and the way that they went about doing that. We‘ve also identified a number of other potential targets they‘ve had. We‘ve talked to some of those men. We‘re still looking for some more of them. We gathered some evidence from the search warrants, relative to their arrest and at the time both of their homes and of the—their cars, and we‘re continuing to process some of that information to try to tie them to these men‘s deaths eventually...

ABRAMS: Any criminal history? Any criminal history, these women?

VERNON: No, direct criminal history that I‘m aware of at this point between the women. One is a foreign national from Hungary. She‘s been here a number of decade and part of the connection in meeting some of these men was through a Hungarian church in Los Angeles where she actually befriended some of these men that went there to the church.

ABRAMS: Wow. All right, Lieutenant Vernon, Agent Brown, thank you both very much for coming on the program. Appreciate it.

BROWN: Thank you.

ABRAMS: Now to the latest in the search for Jimmy Hoffa. Today the FBI demolished a barn on a horse farm where dozens of agents have been searching since last week for the remains of the former Teamsters boss vanished in 1975.

Joining me now by phone, John Wisely, a reporter from “The Detroit News” who was out at that farm all day. John, thanks for coming on the program.

All right. We‘re looking at video of that barn being demolished. I would presume that they have information that indicates that he‘s under the barn, not in the barn, right?

JOHN WISELY, REPORTER, “THE DETROIT NEWS” (via phone): That seems to be the thinking, they got rid of the above structure, which basically just a pole barn today and then they‘re going to have to go under some type of foundation, presumably concrete to get to the spot where they think he‘s at.

ABRAMS: Because obviously if there was any indication he was in the barn, the evidence would be destroyed. So that‘s not of concern, right?

WISELY: Right. The—you know, from what we‘re hearing, the witness had identified the position of the hole in relation to the barn, and so that‘s what they‘re trying to get at.

ABRAMS: Do you have any sense of how good this information is?

WISELY: You know, when you talk to cops and other people involved in the investigation who have been around it for a long time, they—while not 100 percent convinced, they say it‘s better than anything they‘ve had before, that it‘s, you know, it makes more sense and it‘s—and it just seems to work a little better than the stuff they‘ve had before. Now, does that mean he‘s there? I don‘t know, but it‘s better than anything they‘ve had before and they felt they had to pursue it.

ABRAMS: Have they been digging in other areas around the barn?

WISELY: You know, they‘ve done very little digging. They‘ve done some trenching, because they had to take the utilities off the barn and they buried those cables. They‘ve done some probing, with you know like sticks, metal rods, but you know, they were only going a couple inches down, so they really have not done much in the way of excavating or getting down to the kind of depth one would presume a body would be buried at.

ABRAMS: But is this—you know is this the spot? I would presume if they‘re literally tearing down this barn, that the information was pretty specific as to it being under the barn.

WISELY: Right. The—as we understand it, the information is that it—the position of the body is directly related to the position of the barn. Now if it‘s underneath it or right beside it by the foundation and they can‘t dig right there without knocking the barn down, you know we‘re not that precise on how close they are to it.

ABRAMS: We hear in other cases about these high tech devices they can use to assess whether there‘s something down below the ground, very often they can‘t assess whether it‘s a body or something else. Have they been using any of that?

WISELY: Yes. They have ground penetrating radar. I think they‘ve used some thermal imaging. They have some archaeologists, anthropologists type experts from Michigan State University out there who have helped them, but I think a lot of that because of the age of it may or may not you know have the same kind of effect as it would on a fresh grave.

ABRAMS: All right. John Wisely, thanks very much. Keep us updated if anything is happening there.

ABRAMS: Coming up, I made it clear yesterday that unless the D.A. in the Duke lacrosse rape case is holding back some smoking gun from the defense, I said it‘s time to drop the charges against the three Duke lacrosse players. So will he?

And police are searching for a Missouri couple, they say raped, tortured and killed a woman videotaped the whole thing. We‘re going to talk to the victim‘s daughter.

Plus, the ACLU taking out a full-page ad in “The New York Times” encouraging people to file complaints after the phone companies apparently shared customer records with the NSA, but the question, could that backfire?

Your e-mails, abramsreport@msnbc.com. Please include your name and where you‘re writing from. I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS: The Duke University rape investigation, I made myself clear yesterday that if the D.A. has turned everything he has to the defense as he‘s required to do by law, then I think he has no choice but to drop the charges. According to the defense, in almost 1,300 pages of discovery material handed over to them, the accuser changed her story more than once in the hours after the alleged rape, first saying nothing about being raped, then saying she was raped, then saying she wasn‘t raped, just groped outside the house, and then saying she was raped in the bathroom.

She also initially said the second stripper was in the bathroom during the rape. The second stripper denies it. Medical reports show she had no vaginal or anal tearing. We knew no DNA from any Duke lacrosse player was found in or on the accuser, even though based on her story, the authorities thought they would find it. But after that revelation, she apparently told police that the semen of any of the three men that she knew could have been in her body.

We also know at least one of the defendants seems to have an almost airtight alibi. Defense photos from the party support the players‘ account and timeline, as does a neighbor‘s account. The accuser‘s identification of the players through a photo lineup included only Duke lacrosse players and she I.D.‘d one of the suspects as having a mustache, even though pictures will apparently show he did not and all the players‘ stories have been consistent since day one. Now unless the D.A. has something he‘s holding back, which he‘s not suppose to do, I say it‘s time to throw in the towel.

Joining me now former Denver district attorney, Norman Early, criminal defense attorney Yale Galanter and former federal prosecutor Georgia Goslee. Thanks to all of you for coming on the program. Appreciate it.

All right. Norm, let me ask you this. Let‘s assume for a moment that everything that I just said is true. Let‘s assume for a moment that all the facts as I just laid them out are true. Would that be enough for you to say to the D.A. it‘s time to drop the charges?

NORMAN EARLY, FORMER DENVER DISTRICT ATTORNEY: Dan, when we ask juries to make a decision, we tell them to view all the evidence before making that decision. I don‘t know what evidence you haven‘t seen and I haven‘t seen. I know that what the defense attorneys say is evidence is what is repeatedly cited in the media. And you can‘t make a decision based upon one side of the story. Now, I doubt very seriously whether these defense attorneys are saying, OK, this is the evidence that points towards my client, as well as the evidence that points...

ABRAMS: But let‘s assume...

EARLY: ... away from my client...

ABRAMS: Let‘s assume that they don‘t have one of the players, OK, because I think we would know that at this point, if they had one of the players who was going to testify—again, let‘s assume for a minute just for the sake of this discussion, assume for a moment they don‘t have one of those players, OK. Norm, what else could they have that would be incriminating that the D.A. has that we don‘t know about?

EARLY: Dan, you know, I think it‘s inappropriate to assume that the D.A. doesn‘t have anything. I mean, I think that what we have to do is to say, wait a minute, you don‘t know what you don‘t know, until you know what you don‘t know, and we don‘t know...

ABRAMS: I don‘t know...

EARLY: ... what we don‘t know about this case, Dan

ABRAMS: Well I‘ll tell you, I‘ll admit I don‘t know what that means.

EARLY: What you don‘t know...

ABRAMS: I don‘t know what that means.

EARLY: We don‘t know what we—what you don‘t know about this case and what I don‘t know about this case is not a known quantity. All we know about this case is the things that you have cited, and there‘s 1,200...

EARLY: ... pages of evidence here, and we don‘t know what‘s in those other 1,199 pages.

ABRAMS: Georgia...

EARLY: We have no idea what‘s in there.

ABRAMS: Georgia, what I said to Susan Filan last night is I‘m suddenly hearing prosecutors talking like defense attorneys on this program, that all of the evidence we do know about points away from guilt. And yet all the prosecutors can say is, well, maybe we don‘t know everything, maybe there‘s more. And you know you can‘t have it both ways. You can‘t say, in almost every case—I‘m not saying you‘ve done this, but I‘m saying that prosecutors have appeared on this program say again and again, well, you know, maybe there‘s something else out there, maybe—the bottom line is everything we know of, everything seems to help the defense.

GEORGIA GOSLEE, FORMER FEDERAL PROSECUTOR: Well, good evening, Dan. Let me just say this in response to that, I think the viewers are being misled. I think the defense attorneys are doing exactly what they‘ve been hired to do, and that is to confuse the public. Listen, I‘ve tried many cases as a prosecutor, and as a criminal defense attorney and I can tell you right now that is completely the defense attorney‘s spin. You keep saying that this case needs to be dropped. Please tell me why...

ABRAMS: All right...

(CROSSTALK)

ABRAMS: I‘ll tell you why. I‘ll tell you why. Because if you have

an account from an accuser that is inconsistent—let‘s just start there -

the fact that she said she was raped, then said she wasn‘t raped, OK, that happens in some cases, fine. The fact that the D.A. came forward and said there is going to be DNA that is going to clear or inculpate or exonerate the people involved in this and there was no DNA. That says to me somebody told him...

GOSLEE: But let me just say this. That the prosecutor in this case came forward, there was such a media blitz in the beginning, he came forward and made those allegations and said what he was relying upon. Remember this, Dan. He‘s not in a court of law. He doesn‘t have to—he‘s not bound by everything that he‘s saying in the media, when that jury...

ABRAMS: That wasn‘t in the media. I‘m citing an affidavit that was filed by the authorities.

GOSLEE: Even if you‘re citing an affidavit, it doesn‘t make any difference. What‘s going to bind this prosecutor is what he presents in his opening statement when that jury is impounded.

ABRAMS: ... you are an unethical prosecutor if you are not revealing the information—for example, like if they had a witness who is going to come forward and say I witnessed something happened, it would be unethical for them to have not turned that over by now.

GOSLEE: Let me add one other thing, Dan.

EARLY: Dan, I agree with that.

GOSLEE: Go ahead. Go ahead.

(CROSSTALK)

GOSLEE: I was just going to add that those that massive amount of documentation turned over to the prosecutor turned over to the defense attorney, if there was something incriminating in the evidence...

GOSLEE: My point is—listen, my point is if this is anything incriminating in all of those documents turned over by Nifong, do you think the defense attorneys are going to tell and disclose that?

(CROSSTALK)

ABRAMS: Look...

GOSLEE: No, they‘re not.

UNIDENTIFIED MALE: Yes.

ABRAMS: Well look, I‘ll tell you this. I‘ll tell you this. That I can‘t imagine because of what we know about the case, because I‘ve seen the DNA report, which was supposed to be the smoking gun in this case.

ABRAMS: ... tell me theoretically what could be in there that we‘re missing.

GOSLEE: Let me—Dan, listen to this. If you say that Nifong has abused his discretion in not dropping this case at that—at this point, remember, it‘s not just Nifong. The judge signed a search and seizure warrant, application for search and seizure warrant. There was a bail commissioner who decided that 400,000, almost a half a million dollars...

GOSLEE: You have physicians who are saying that the incident or the allegation she‘s made, they‘re consistent with being raped.

ABRAMS: All right. Here‘s...

GOSLEE: It‘s not just Nifong.

ABRAMS: Of course—and look, this is what drives me crazy about this, is prosecutors have enormous discretion and everyone knows that in the vast majority of these cases, you know when someone is arrested, and most of the time they‘re guilty, and people say, well, you have to presume the defendant innocent and that‘s true. When you‘re inside a courtroom, the person has to be presumed innocent. It doesn‘t mean that outside the courtroom that applies either. What I‘m talking about here is prosecutorial discretion.

GOSLEE: But Dan...

ABRAMS: Here‘s how Mike Nifong defended on April 28 -- this is how he defended how he‘s been going about dealing with this case.

(BEGIN VIDEO CLIP)

MIKE NIFONG, DURHAM, NC DISTRICT ATTORNEY: Not only is the prosecutor not required to presume a defendant innocent, but it would be a violation of his ethical duties to prosecute any person in whose guilt he did not personally believe. And if the prosecutor personally believes in a defendant‘s guilt, it would be a violation of his moral responsibility to the victim and to his community not to prosecute a case, because doing so was not popular or because he was worried that he might not win at trial.

(END VIDEO CLIP)

ABRAMS: And look—and Yale Galanter, I‘m not going to sit here and say that Mike Nifong doesn‘t believe personally in his case. That I can‘t tell you. I can‘t—I‘ve got to believe, I‘ve got to believe that Mike Nifong believes in this case personally, but that‘s not the end of the inquiry.

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY: No, you‘re right, Dan, and I agree with you. I think that the only thing going for the prosecution in this case is Mike Nifong‘s belief in his complaining witness, but you hit the nail on the head. When you ask Norm and you ask Georgia, you know tell me your fantasy. Tell me your theory. Tell me anything that he could have, they can‘t come up with an answer. Dan, this is not only a case that should be dropped now. This is a case that should have never been filed in the first place.

GOSLEE: Yale, Yale...

GALANTER: I was a prosecutor. Dan, if you look at what Mike Nifong knew within two or three days of March the 13th, he knew from his law enforcement people that the complaining witness had given inconsistent stories. He knew from a civilian witness who was at the incident, near it, didn‘t hear anything, didn‘t see anything, and contradicts his complaining witness. He knows his complaining witness has a prior record.

He knows that his complaining witness made a prior accusation of rape and didn‘t follow through, and he knew at that time that the injuries that the rape treatment examiners did really were not consistent with a brutal forcible 30-minute struggle. So taking that in mind, this case should have never gotten into the system.

GOSLEE: If you and Dan are so adamant that the case should be dropped and you are 100 percent convinced that all of us are wrong and that nobody should hear the other side of the story, tell me why it should be aborted and why it should be expedited.

GALANTER: Georgia, the problem here is there is no other side to the story. We have had people who...

ABRAMS: Wait, wait, wait, wait. There was a question. Georgia asked Yale a question. Yale, respond to her question.

GALANTER: Georgia, David Evans passed a polygraph with flying colors that not only exculpated him but it exculpated Collin Finnerty and Reade Seligmann and they didn‘t go to some fly-by-night polygrapher. They went to the guy that teaches the FBI at the academy. The polygrapher in this case...

EARLY: I would like to say this. We know that there was some conflict between this woman and some of the law enforcement people from the very beginning. We know she didn‘t want to talk to some of these people. We know she said yes, I was raped, no I was raped. I won‘t tell you anything else about this. That‘s why we have sensitive people talking to rape victims. That‘s why we have victim advocates. That‘s why there are policewomen with sensitivity who generally take these stories. It is not uncommon for a woman—but something else we know...

EARLY: Yale, I let you talk. We know that some of these very same police officers went out and told other people this case is going nowhere, this woman has no case, she has no credibility, and all these other things about this woman. If these were the same people who were interrogating her, I can see why she changed her story...

ABRAMS: But is it also possible...

EARLY: ... over and over again.

ABRAMS: ... Norm, that the reason they didn‘t believe her is because she said at one time it was 20 people and another time it was three, and another time she said...

ABRAMS: Back. An alleged murder is videotaped, now the suspects are on the run. Police say 41-year-old Marsha Spicer was murdered during what they call a violent sexual encounter with a man believed to be Richard Davis and another woman thought to be Dena Riley. It wasn‘t until days after Spicer‘s body was discovered that police found the 8-millimeter videotape and viewed it.

Quote—“The victim had her hands duct taped behind her back and her eyes were covered in duct tape and appears to be in a drugged-induced state. The victim is repeatedly struck with open and closed hands, strangled several times by Davis. She‘s seen spitting and possibly vomiting from the abuse and is heard asking the suspects to stop and pleading with them.”

The alleged murder took place at Davis‘ home in Independence, Missouri. Her body found in a shallow grave in the woods just north of Bates City. And it is now believed the last credible sighting of the couple was hundreds of miles away in Perryville, Missouri, where they are believed to have been on Sunday.

Joining me now by phone is Tom Gentry from the Independence Police Department and Mike Sanders, the prosecuting attorney for Jackson County, Missouri. Gentlemen, thanks very much for coming on the program. Appreciate it.

ABRAMS: All right. Mr. Sanders, I mean you‘ve seen the videotape. I mean, just so people have a sense, is there any ambiguity, is there any room for dispute as to whether they killed this woman?

MIKE SANDERS, JACKSON COUNTY, MO PROSECUTING ATTORNEY: Let me kind of couch it in these terms. Number one, this videotape is two hours long, so what we see from the beginning to end is repeated sexual assaults and virtually any way imaginable. She is struck with open and closed fists, choked several times, both in and out of consciousness, but at the end of the tape and I think I‘ll leave it at this, at the end of the tape, clearly she had been choked into unconsciousness.

Now, is that the definitive moment when we allege the homicide was committed or not we‘ll leave for the medical experts that are still reviewing some of the evidence. But that is, if not the moment, we are fairly close to the moment I think on that videotape in terms of the cause of death being strangulation, so fairly dramatic stuff.

ABRAMS: All right. Do we know, Mr. Gentry, how Marsha Spicer knew Davis and Riley?

GENTRY: That‘s not entirely clear, except for the fact that she was an acquaintance of several individuals who did know Mr. Davis, and Mr. Davis had a circle of friends. She apparently was one them, and—but the nature, the extent of it, we‘re not entirely clear with that yet.

ABRAMS: How do you know that they were in Perryville on Sunday?

GENTRY: Apparently they were spotted there. Highway patrol responded, and in fact, as they were trying to find out where they were, a certain lady by the name of—I believe it was Susan Summers was arrested for helping them escape at that moment while the highway patrol was talking to her.

ABRAMS: All right. This is, according to the probable cause statement of May 21, a witness told police that Riley and Davis told her they were going to start killing women. They were going to drug women and then Davis was going to rape the women and they were going to dispose of the body by burying it. Credible witness, Mr. Sanders?

SANDERS: Sure. I mean, look, I mean if we didn‘t believe the witness or think the witness was credible, it would not be pertaining to probable cause, but additionally one thing I want to point out as well is that this isn‘t just Mr. Davis that we‘re talking about that committed these assaults, was involved in the striking, the choking, and the rape and the sexual assaults.

His accomplice through all of this was Dena Riley. She was as actively involved in much of the sexual assault and assault of nature of this conduct as he is, so we have got a number of witnesses that are coming forward which corroborate this. And I think what makes this case so chilling I think to us, is you know it‘s not uncommon to find defendants that inadvertently are on tape committing crimes.

You know we see that quite a bit with the number of video cameras that are out in the community now. But to intentionally videotape a crime in your bedroom, to have that set up in advance, you know detectives, a very alert detectives saw that video camera on May 17 in that apartment, but to do that so that the two of them or whoever they wanted to invite over could sit back and re-watch their handiwork and what they did, that‘s—that involves I think a degree of depravity, coldness and calculation that‘s pretty chilling.

ABRAMS: And there is no doubt, again, from the tape that this could not have been an accidental death, correct?

SANDERS: There‘s no question. I think anyone that‘s even seen five minutes of that videotape and hears the woman pleading for her life, sees how graphically she‘s struck, beaten, sexually assaulted, there is nothing even remotely consensual about that. And additionally, because it goes on for two hours, there‘s virtually no question as to who is in those tapes.

ABRAMS: Sounds like it‘s actually affected you personally having seen that tape.

SANDERS: You know, I‘ve been doing this for 14 years, we see 10,000 cases that go through this office in a year. But I‘m a father, we‘re all human beings, I‘m a husband, and watching that tape, that‘s probably the most disturbing—I see 170 homicides sometimes in a year, that‘s probably some of the most disturbing stuff I‘ve ever seen and it‘s something I won‘t forget.

(CROSSTALK)

GENTRY: If I may add to that...

ABRAMS: Real quick, yes.

GENTRY: Our detectives, several of our detectives have not been able to sleep. We are—we‘re going to have some folks coming in talk to them, and it‘s—it is probably the most disturbing that most of us have ever seen.

ABRAMS: All right. Well, there‘s the number. If anyone has got any information, 816-474-TIPS. If you know where these -- they are, please contact them.

Tom Gentry and Mike Sanders—I should say contact the authorities—thanks a lot for coming on the program. Appreciate it.

SANDERS: Thanks.

GENTRY: Thank you, sir.

ABRAMS: Coming up, the ACLU demanding action about the phone companies turning over records to the NSA. They‘ve taken out full-page ads asking phone customers to file complaints.

And the show got heated last night. We debated whether the D.A. in the Duke lacrosse investigation should drop the charges. A lot of you writing in.

(COMMERCIAL BREAK)

ABRAMS: Coming up, the ACLU taking out a full-page ad in “The New York Times”, encouraging people to file complaints against phone companies for sharing customer records with the NSA. We‘ll debate.

(COMMERCIAL BREAK)

ABRAMS: It‘s called “Don‘t Spy On Me”. The American Civil Liberties Union launching a new pressure campaign with full-page ads in eight newspapers including “The New York Times” asking people to join its formal complaints filed with local utility commissions, attorneys general and the Federal Communications Commission. The ACLU is demanding they investigate phone companies that reportedly shared customer records with the National Security Agency. The records presumably part of an effort to collect phone numbers in the hopes of tracing terrorist communications.

The ACLU ad says—quote—“Under an unprecedented and illegal secret arrangement, phone companies like AT&T and Verizon have reportedly been handling their customers‘ phone records over to the National Security Agency. This is a violation of the law. It is a violation of consumer trust. And it‘s a violation of Americans‘ expectation that the government will not pry into their lives without probable cause.”

Barry Steinhardt is director of the Technology and Liberty Project at the ACLU and David Rivkin is a former White House counsel and former deputy director of the Office of Policy Development at the Justice Department. Gentlemen, thanks very much for coming on the program. Appreciate it.

UNIDENTIFIED MALE: Good to be with you.

UNIDENTIFIED MALE: Thank you.

ABRAMS: All right, Mr. Steinhardt, first let me just ask you a legal question. I‘ve read this opinion that the attorney general has been citing from 1979, which is essentially saying we don‘t need probable cause. We don‘t need to get a warrant. We don‘t need—there is no Fourth Amendment issue here, a particular privacy interest when it comes to just knowing phone numbers, and the opinion from the U.S. Supreme Court, Smith v. Maryland says the following.

Telephone users know that they must convey numerical information to the phone company. It is too much to believe that telephone subscribers harbor any general expectation that the numbers they dial will remain secret.

Why doesn‘t that apply here?

BARRY STEINHARDT, AMERICAN CIVIL LIBERTIES UNION: Well, Dan, as you know as a lawyer, there are statutes, the law is passed by the Congress, including the Foreign Intelligence Surveillance Act, which are pretty clear about what the process is if the government wants to get these kinds of records. None of these laws were apparently filed—followed. In fact, what‘s apparently happened is that the Bush administration believes it has this almost imperial power to demand these records. We‘re not saying that they‘d never get the records. What we‘re saying is they‘ve got to follow the law. No one is above the law, including the president of the United States.

ABRAMS: But so, again, because look, I‘ve had a real problem with what the administration has claimed is the legal monitoring of domestic phone calls. I don‘t get how they think that they can get around the FISA court on that, but on this one, it does seem to me that the Supreme Court case is right on point.

STEINHARDT: No, Dan, actually it‘s not. Let me be clear and I know you‘ll appreciate this as a lawyer. That case was about a constitutional argument, whether or not—whether the Constitution required probable cause before those kinds of records could be turned over. The Congress is stepping the breach. Regardless of what the Supreme Court said constitutionally, the Congress is stepping the breach and said we‘re going to pass a statute.

We‘re going to pass a law. You, the administration, must follow this law. This is an absolutely lawless action on their part. The law could not be clearer. They need to go to the Foreign Intelligence Surveillance Court in order to get permission to do this...

ABRAMS: ... because it doesn‘t relate to information. It relates—it‘s not about listening to the calls. It‘s about the numbers, which is a different issue.

STEINHARDT: That is not true under the Foreign Intelligence...

ABRAMS: Really? Does it say...

(CROSSTALK)

ABRAMS: ... in the Foreign Intelligence...

(CROSSTALK)

ABRAMS: Did I miss the part of the act where it specifically says about numbers?

STEINHARDT: And what you‘re also not relating to is what‘s known as the Stored Communications Act. Now the truth is that all of these laws are intended to cover the activities of other agencies, for example, the FBI. The NSA doesn‘t have any authority to spy on Americans. Remember, what we‘re talking about here. If this news accounts are true, we‘re not talking about one American, we‘re not talking about a few terrorists, we‘re talking about 200 million Americans...

ABRAMS: Again, I‘m going to let David Rivkin respond because I know he wants to, but again, I‘m going to quote from the 1979 opinion. We doubt that people in general entertain any actual expectation of privacy in the numbers they dial. A statute doesn‘t overrule that observation of what the Fourth Amendment requires or not.

(CROSSTALK)

STEINHARDT: Statutes certainly controls here, you know that, Dan, and Congress is very clear about what...

ABRAMS: All right...

STEINHARDT: ... the administration needs to do.

ABRAMS: I may be missing which statute says about phone numbers, but David Rivkin, go ahead.

DAVID RIVKIN, FORMER WHITE HOUSE COUNSEL: Dan, you‘re not missing anything. Point number one involved this case, which is excellent law, remains valid and other case law. The Supreme Court said the business records like this do not rise to the level where constitutional expectation of privacy attaches.

To be sure, Congress per statute can create a statutory protection for

again, disclosure of business records, even without any constitutional basis. But what puzzles me greatly is the ACLU froze out in the shoddiest legal analysis, references to a bunch of statutes that don‘t apply here. You‘re right.

It has nothing to do with FISA. FISA deals with interception of content, with pen registers perhaps, doesn‘t deal with this information at all. There‘s only one federal statute that applies and that‘s Electronic Communications Privacy Act, which is actually...

ABRAMS: ... on the screen so people can see it as you‘re talking about it. Go ahead.

RIVKIN: And that‘s a portion actually of restored Communications Act...

ABRAMS: Right.

RIVKIN: ... and indeed providers like AT&T, Verizon, generally are not supposed to provide customer records. There is a set of exceptions in section, if I‘m not mistaken, 2702, (UNINTELLIGIBLE) 2702...

ABRAMS: Yes.

RIVKIN: ... and exception number four says specifically that in cases involving immediate threat of danger...

ABRAMS: Right.

RIVKIN: ... and you have to reasonably believe as a provider that that is the case. You can‘t disclose this information. Let me ask you one basic question and my friend from ACLU, having been attacked on September 11, after Congress declared the authorization to use force, after NATO declared—invoked the use of Article Five, which is mutual defense obligation, we‘re in a state of war.

ABRAMS: ... the minute you start using those general empower—the post September 11 statutes, et cetera, and what Congress said after that, when you use the sort of generalities like that, I think you lose some of the steam of the argument on this particular issue, because those—this is where I disagree with you on the issue of actually listening to domestic phone calls. I don‘t believe anything that Congress said somehow authorized the administration to do what they‘re doing with regard to listening, but this is a little bit different, and this is the last question, David. People, the American people are more disturbed, I think, by this than anything else that we‘ve heard about so far. Why?

ABRAMS: But it‘s a fact. I mean people are more disturbed by this than anything to occur so far, and all the ACLU is saying is hey, we just want to get a list of people...

(CROSSTALK)

ABRAMS: ... and we‘re going to file complaints...

(CROSSTALK)

ABRAMS: ... file complaints.

RIVKIN: This—very briefly, this information is being spun by the media.

The polls still show that the majority of American people are not...

(AUDIO GAP)

ABRAMS: Whoop. We lost David Rivkin. I‘m sure the conspiracy theorist will say that he somehow got cut off by someone who didn‘t want to hear what he had to say. Sorry about that. Anyway, Barry Steinhardt, David Rivkin, thanks a lot. Appreciate it.

ABRAMS: All right. Coming up, things got pretty heated on the show last night. I got into it with ABRAMS REPORT regular Susan Filan. Some of you saying it‘s about time. Others telling me it‘s time for me to mind my manners and one person says it couldn‘t get that heated unless it was love. I read your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS: Now it‘s time for “Your Rebuttal”. Last night a heated debate. I said taking all the circumstances together, it‘s time to drop the charges against three Duke lacrosse players unless the D.A. has something else he‘s hiding. Regular guest, former prosecutor Susan Filan disagreed. We got into it.

Dewey Holton in St. Louis, “On Tuesday‘s show you and Susan had one of the very best debates that I‘ve seen on TV concerning the Duke rape case. You greatly insulted Susan, a former prosecutor, when you said to her that she was talking like a defense attorney. How cruel.”

P. Merten writes, “Excellent smack-down of Susan Filan today.”

But Linda Papazian asks, “What is your problem today? How dare you talk to her like you have today. If I were Susan, I would tell you to go to hell.”

Liz Eby in Bellvue, Colorado, “Please stop buying into the defense spin of evidence and give Susan and Norm Early more time to present a victim‘s view.”

From Jackson, New Jersey, Laura West, “You were great tonight. I am so sick of people making excuses for every piece of evidence that proves there was no rape.”

Martha Hogan in St. Louis has a different take on the passion in our arguments. “Wow, you definitely have a thing for Susan. Nobody could get that heated unless he was in love.”

From Orlando, Florida, J. Vaughn responds to my comment that it‘s more likely than not these three did not commit the crime. “If there is any reasonable likelihood that a person is raped, that victim deserves the opportunity to be heard in court regardless of the outcome.”

OK, so even if it‘s more likely than not a false allegation, the three defendants have to suffer through a trial? Come on.

Yesterday, the House voted on a new bill that would require state and local emergency preparedness offices to include pets in the evacuation plans. A. Foster in Detroit, “Those rescuers would be risking their lives to save others and they‘re told to risk it further to save a dog. Please.”

But Gina Frey in Minneapolis, “I really don‘t know how anyone can think this is a bad idea.”

Jessica Davis from Indianapolis, “I‘m totally flabbergasted that our legislative branch couldn‘t think of anything better to do with their time than come up with this utterly stupid bill. I have animals, love my animals, but to put animals before humans, outrageous.”

Rachel Berg in New York City, “Animals are as vulnerable and as dependent on people as human babies. The question is not who would be more essential to save, people or animals, but do you view all living things as deserving to survive, to live?”

Finally, Marlin Tiner in Fort Lauderdale, Florida, “Will this only be cats and dogs or will it include birds, exotics or zoos? I can see it now, Halliburton being given $1-billion contract to build an ark.”

Be right back.

(COMMERCIAL BREAK)

ABRAMS: That does it for us. Coming up next, “HARDBALL” with Chris Matthews. See you tomorrow.

END

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